Citation Nr: 0611219
Decision Date: 04/19/06 Archive Date: 04/26/06
DOCKET NO. 00-15 485 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to an increased evaluation for gastritis,
esophagitis, and hiatal hernia, currently evaluated as 10
percent disabling.
2. Entitlement to service connection for a cervical spine
disability, to include as secondary to the veteran's service-
connected disabilities of the left knee, right knee, lumbar
spine, and digestive system.
3. Entitlement to service connection for a psychiatric
disorder, including depression and dysthymic disorder,
claimed as secondary to the veteran's service-connected
disabilities of the left knee, right knee, lumbar spine, and
digestive system.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jonathan E. Taylor, Counsel
INTRODUCTION
The veteran served on active duty from September 1980 to
December 1980.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a December 1999 rating decision of the
San Juan, Puerto Rico, Department of Veterans Affairs (VA)
Regional Office (RO).
REMAND
The veteran's representative in its February 2006 brief
asserts that the record does not contain current findings
regarding the veteran's service-connected gastrointestinal
disorders. The veteran last underwent a VA examination in
April 2002. At that time the veteran's claims file was not
made available to the examiner. Additionally, the veteran
has continued to receive treatment for her gastrointestinal
disorders since that time. A current examination should be
provided to the veteran.
Regarding the veteran's claim of service connection for a
psychiatric disorder, the examiner who conducted a May 2002
examination did not provide an opinion regarding the
relationship of the veteran's current mental disorder to her
service-connected disabilities. Although a supplemental
opinion was later provided by another VA psychiatrist, that
psychiatrist did not examine the veteran. A new examination,
with a nexus opinion by the examining physician, should be
provided to the veteran.
Finally, duty to assist letters provided to the veteran in
December 2001 and November 2003 are insufficient with regard
to the veteran's claims for service connection on a secondary
basis. Additional notice should be provided to the veteran.
Accordingly, this appeal is REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, D.C. VA will
notify the veteran if further action is required on his part.
1. Ensure that the notification
requirements set forth at 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b)(1) are
fully complied with and satisfied
regarding the veteran's claim of
entitlement to service connection for a
psychiatric disorder and a cervical spine
disability, both claimed as secondary to
the veteran's service-connected
disabilities.
2. Provide VA esophagitis and hiatal
hernia and stomach, duodenum, and
peritoneal adhesions examinations to the
veteran in order to assist in evaluating
the severity of the veteran's service-
connected gastritis, esophagitis, and
hiatal hernia.
The claims folder, including reports of
VA examinations of the veteran in June
1999 and April 2002, must be made
available to the examiner for review in
conjunction with the examination. The
examiner is requested to state in the
examination report that the claims folder
has been reviewed.
All relevant inquiries on both
examination worksheets should be
completed.
3. Provide a VA spine examination to the
veteran to assist in determining whether
the veteran has a current cervical spine
disability that is related to her
service-connected disabilities.
The claims folder, including the report
of an April 2002 VA spine examination,
must be made available to the examiner
for review in conjunction with the
examination. The examiner is requested
to state in the examination report that
the claims folder has been reviewed.
The examiner should opine whether any
current cervical spine disorder is "at
least as likely as not" (likelihood of
50%) caused by or aggravated by the
veteran's service-connected disabilities.
(The veteran's service-connected
disabilities include a lumbar spine
disability, a left knee disability, a
right knee disability, gastritis,
esophagitis, and hiatal hernia.) A
complete rationale should be provided for
any opinions expressed.
The term "at least as likely as not"
does not mean "within the realm of
medical possibility." Rather, it means
that the weight of medical evidence both
for and against a conclusion is so evenly
divided that it is as medically sound to
find in favor of the conclusion (e.g.,
diagnosis, etiology) as it is to find
against the conclusion.
4. Provide a VA mental disorders
examination to the veteran to assist in
determining whether the veteran has
dysthymic disorder, depression, or any
other psychiatric disorder that is
related to her service-connected
disabilities.
An examiner who has not evaluated the
veteran or the veteran's case previously
should conduct the examination. (The
veteran underwent VA examinations in June
1998 and May 2002, and a VA third
psychiatrist provided a supplemental
opinion in May 2003.)
The claims folder, including the reports
of VA examinations of the veteran in June
1998 and May 2002, must be made available
to the examiner for review in conjunction
with the examination. The examiner is
requested to state in the examination
report that the claims folder has been
reviewed.
The examiner should opine whether any
current psychiatric disorder is "at
least as likely as not" (likelihood of
50%) caused by or aggravated by the
veteran's service-connected disabilities.
(The veteran's service-connected
disabilities include a lumbar spine
disability, a left knee disability, a
right knee disability, gastritis,
esophagitis, and hiatal hernia.) A
complete rationale should be provided for
any opinions expressed.
The term "at least as likely as not"
does not mean "within the realm of
medical possibility." Rather, it means
that the weight of medical evidence both
for and against a conclusion is so evenly
divided that it is as medically sound to
find in favor of the conclusion (e.g.,
diagnosis, etiology) as it is to find
against the conclusion.
5. After the development requested above
has been completed to the extent
possible, review the record. If any
benefit sought on appeal remains denied,
furnish a supplemental statement of the
case (SSOC) to the veteran and his
representative and give them the
opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).